New York City Mayor Bill de Blasio issued Executive Order 225 (the Order) and related guidance on August 16 regarding the “Key to NYC” vaccination requirements for indoor entertainment/recreation, dining, and fitness settings. Under these requirements, individuals age 12 and older will be required to show proof that they have received at least one dose of an approved COVID-19 vaccine before being admitted to certain covered indoor facilities. The requirements took effect on August 17 but will not be enforced until September 13, 2021.
As set forth in more detail below, the requirements only apply to the indoor premises of certain covered businesses. There are also several important exemptions, including as to children under 12, private dining facilities within office buildings, nonresident contractors, repair technicians, and for individuals entering a covered facility for a “quick and limited purpose.” To the extent proof of vaccination is required, covered businesses must require proof and implement a policy for how they will verify proof of vaccination for patrons and employees alike. Finally, covered businesses must meet certain notice and recordkeeping requirements.
The requirements apply to all patrons, employees, interns, volunteers, and contractors entering indoor premises (defined as having a roof/overhang and three walls) of the following types of businesses in New York City, unless excluded by one of the exemptions described below.
The Order does not apply to offices or other business sectors not specifically named.
There are several significant exemptions to the requirements:
For each of these exemptions, the guidance provides that the exempt individual must wear a face mask at all times while indoors, except when eating and drinking, whenever they are unable to maintain six feet of social distance from other people.
To enter the indoor premises of covered businesses, individuals who are not covered by the exemptions must show proof they have received at least one dose of a vaccine authorized by the US Food and Drug Administration (FDA) or by the World Health Organization (WHO). This includes vaccines administered outside the United States and not approved for distribution in the United States, which currently are AstraZeneca/SK Bioscience, Serum Institute of India/COVISHIELD and Vaxzevria, Sinopharm, or Sinovac.
Sufficient proof can include any of the following:
Covered businesses may keep a record of individuals who have previously provided proof of vaccination, rather than require the proof be displayed every time the person enters the establishment.
Covered businesses must also require individuals to provide identification bearing the same identifying information as the proof of vaccination for any individuals appearing to be 18 years of age or older. The identification must be checked at the same time as the proof of vaccination. Proof of identification must contain the individual’s name and either a photo or their date of birth, which must then be compared to the information in the proof of vaccination. Note that in lieu of requiring identification, covered businesses can match proof of vaccination to identity records they already maintain for the individual (e.g., employment records for employees).
Covered businesses do not need to verify that an individual’s proffered proof of vaccination is real, but they are encouraged (though not required) to report suspected fake vaccination cards by calling 311 or making a report to the New York State Attorney General or Department of Health.
The New York City Commission on Human Rights issued guidance on how to handle requests for accommodations by patrons and employees.
Covered patrons (e.g., a patron 12 years old or over who wants to enter the indoor portion of the premises for more than a “quick and limited” purpose) who cannot show proof of vaccination because of their own disability should “speak with the business . . . to see if there is a reasonable accommodation that would enable [them] to access the business’s goods or services without posing a direct threat or undue hardship to the business.” The covered business is then directed to engage in a “cooperative dialogue” but – importantly – the guidance provides that a covered business “does not have to allow [them] to enter the indoor portion of its premises for anything beyond a quick and limited purpose.” Instead, covered businesses are directed to consider serving such patrons outside, by phone, or through an online platform rather than inside the indoor portion of its premises.
Note that covered businesses only need engage in a “cooperative dialogue” with patrons requesting an accommodation because of their own disability. Covered businesses are advised by the guidance not to ask for proof of disability or potentially invasive questions regarding the disability when engaging in a cooperative dialogue.
Based on the guidance, employees may allege they cannot show proof of vaccination because of their own “disability, pregnancy, religious belief, or your status as a victim of domestic violence, stalking, or sex offenses.“ If an employee requests an accommodation on such bases, a covered business is instructed to engage in a “cooperative dialogue” to see if there is a way that the employee can continue to perform their job without posing a direct threat or undue hardship to the business. Specifically, the covered business should consider whether an employee can (a) work remotely; (b) work outside the indoor portion of the premises; or (c) work in an area separated from other people. If there is no reasonable accommodation that would allow the employee to safely perform their job duties, the guidance provides that a covered business “may offer [the employee] a leave of absence until [they] are able to show proof of vaccination or it is otherwise safe for [them] to resume work.”
A covered business may require documentation from an employee requesting an accommodation. Specifically, the guidance provides as follows:
Covered businesses must take two immediate steps. First, they must develop and keep a written record or policy describing the covered entity’s protocol for implementing and enforcing these requirements. These materials must be maintained on the covered businesses’ premises and made available to government inspectors upon request.
Second, businesses must also post a notice in a conspicuous place that is viewable by prospective patrons prior to entering the establishment. Covered businesses can use the City’s model notice or develop their own sign provided the sign must be no smaller than 8.5 inches by 11 inches and use the following text in at least 14-point font: “New York City requires staff and customers 12 years of age and older to be vaccinated against COVID-19 in order to enter this establishment. To find out where to get a free COVID-19 vaccine visit nyc.gov/vaccinefinder or call 877-VAX-4NYC (877-829-4692). For more information on Key to NYC, visit nyc.gov/keytoNYC.”.
As noted above, businesses should immediately confirm whether these new requirements apply to them, particularly those that provide public indoor food and entertainment services. Covered businesses should then prepare a policy for how they will verify compliance with these requirements, consider training/education steps they can take to help their staff ensure the company verification policies are followed, and post the required notice at or near the entrance to any areas of the business where the vaccination requirements will apply.
While the vaccination verification requirements go into effect immediately on August 17, 2021, enforcement will not begin until September 13, 2021. The city will likely issue additional guidance between now and September 13, 2021.
Finally, note that beginning September 13, 2021, city agencies will begin inspections and are authorized to issue fines for violations. A covered business found to be noncompliant may be subject to a fine of $1,000. Repeated violations may result in increased fine amounts or other enforcement action.
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